Past approach to treaty negotiation didn’t work: INAC officials

First Nation, Métis and Inuit leaders have been receptive to the federal government’s strategy of broadening the scope of treaty negotiations, officials from Indigenous and Northern Affairs Canada (INAC) said Tuesday.

Ottawa’s preference for negotiating treaties that encompass every sticking point between the Crown and an Indigenous nation has severely limited negotiators in the past, said INAC Associate Deputy Minister Perry Billingsley in an appearance before the House Indigenous Peoples committee.

“Canada’s approach to comprehensive claims, in particular, which is to say full and final and (with) certainty, has not helped us,” Billingsley said to MPs. “Because when you tell people you’re negotiating ‘full, final and certainty,’ they want to make sure every i is dotted and every t is crossed.”

Carolyn Bennett, who was INAC minister before becoming minister of Crown-Indigenous Relations in August, gave public servants last year the power to have discussions with First Nation, Métis and Inuit peoples outside of a treaty negotiation.

The looser approach has since spread to federal negotiations on comprehensive and specific claims.

A treaty that is unlikely to be re-opened is important, but certainty has to be balanced against other objectives, Billingsley said in a response to a question from Conservative MP Cathy McLeod, her party’s shadow minister for Crown-Indigenous Relations.

“What has happened in the past is that we have probably overstressed the importance of certainty as the outcome of an agreement,” Billingsley said at committee. “Predictability is one of the things that we’re looking for. And you can balance predictability and certainty in an agreement along with some of the other considerations.”

‘Specific claims’ refer to specific grievances First Nations have against the Crown over land or another infringement of their rights, which predate European contact. ‘Comprehensive claims’ are talks that encompass the nation-to-nation relationship between and Indigenous Peoples and the Crown.

The federal government is involved in 46 comprehensive claims negotiations. Negotiating a comprehensive claim takes on average 13 to 15 years, while settling a specific claim takes around five, according to federal officials. However, some specific claims date back to events in the 18th century.

Bennett’s decision last year to give public servants greater leeway in talks with First Nations, Métis and Inuit has created another venue for talks, which officials alternatively call ‘exploratory tables’ or ‘recognition of Indigenous rights tables.’

These new tables are allowing the federal government to deal with crises in governance while simultaneously looking at deals on specific aspects of government — like this summer’s education agreement between the Crown and 23 First Nations in Ontario.

“The rights and recognition tables allow us to begin to talk about both the pressing issues, and then looking beyond those pressing issues at self-government and self-determination kinds of arrangements,” said Billingsley.

The department continues to struggle with specific claims in highly developed parts of the country, said Stephen Gagnon, director general of the specific claims branch at INAC.

“The approach has always been to try, in these cases, to provide cash so that the First Nation can buy on a willing-buyer, willing-seller basis so that the rights of the people who are already there are also being protected to the extent that they can,” said Gagnon.

“First Nations don’t always like that approach, but I don’t know that you can get into a situation where you’re taking land from people who were already there.”

Ottawa created the Specific Claims Tribunal in 2008 to speed up the process, but a 2015 auditor general report pointed to many outstanding issues, including a lack of transparency and mediation.

The recent shift in negotiation strategy is happening as Justice Minister Jody Wilson-Raybould runs a ministerial working group to bring Canadian policy in line with Indigenous rights.

“That is kind of a top-down exercise and we’re also going to be pursuing a bit of a bottom-up exercise by working with different Indigenous groups on what they see are the reforms that are necessary for the (comprehensive) claims policy,” said Billingsley.